This case
involves the
constitutionality of the Georgia obscenity statute. The questions
raised by
this appeal, insofar as the constitutionality of the statute are
concerned, are
twofold. First, we raise the question that the statute violates the
First
Amendment because it punishes the mere possession of obscene material,
without
requiring any further overt act on the part of the possessor, or intent
to do
anything with it.

THE COURT:
What kind of
possession was this?

MR.
ASINOF: This was a
possession, if Your Honor please, where Robert Eli Stanley had
possession of
three reels of motion picture film in a desk drawer of his upstairs
bedroom of
his home. There was no allegation in the indictment of any showing, or
attempt
to exhibit or show these films, or to pander them or show them to
minors. The
only question involved, insofar as the indictment was concerned, was
that he
possessed them knowing them to have been obscene; or that he should
reasonably
have known them to have been obscene.

The second
question of our
constitutional attack on this statute is the use of the language in the
statute, and in the indictment, to the effect that "he reasonably
should
have known of the obscene nature of the film, " which removes the
element
of scienter from the definition of the offense, and thus permits the
State to
secure a conviction for possessing these films, on a showing of less
than
actual knowledge on his part that they were obscene.

THE COURT:
Are they
concededly obscene?

MR.
ASINOF: We do not
concede them to be obscene; and we took that position with the trial
court
then, that under the First Amendment insofar as possession itself is
concerned,
that there is no such thing as "obscenity." The reason that we took
that position, and now take that position, is this: It would be a
violation of
the freedom of the press clause of the First Amendment to restrict a
person, or
to prohibit a person, from possessing anything they want, insofar as
its claim
of obscenity is concerned. We take the position that where a person
merely
possesses an article alleged to be obscene, and does not attempt to
distribute
it or show it to any other person-as was the case in this case, and as
was the
indictment in this case, and as by the holding by the Supreme Court
that the
mere possession is an offense, under the definition of Georgia law-that
any
evidence in the case on the part of the State, or any contention on the
part of
the State, to the effect that the evidence might have circumstantially
shown
that he was about to have a party and was about to show these films to
other
persons, would be completely irrelevant for this Court to consider, and
has no
relevancy here because of the fact that he was only charged with the
mere
possession.

Now, to my
knowledge, this
exact question has never been passed upon by this Court-the question of
whether
or not a person can be prohibited by the State from merely
"possessing" obscene material or obscene writings or pictures.
Clearly, it would seem to me that the mere possession-that anyone would
have
the right, say, to draw a picture which might obviously be obscene to
some
other person, and put it in his pocket, or put it in his desk drawer,
or if he
wanted to take a picture of himself, or a picture of himself and his
wife in a
sexual act, that this would be a matter that he could determine as long
as he
did not attempt to pander this material or attempt to sell it,
distribute it,
or distribute it to minors.

THE COURT:
I suppose when
the-these films were in a desk drawer, were they not?

MR.
ASINOF: These films
were in the desk drawer. This, of course-

THE COURT:
And of course
looking at the films, you couldn't tell what it was?

MR.
ASINOF: You could not.

THE COURT:
Well what did
the officers do here?

MR.
ASINOF: The
officers-and I might as well mention this at the outset, right here.
The second
part of our contention is, the officers were armed-they were Federal
and State
officers-they were armed with a Federal search warrant issued by a
United
States Commissioner, on a claim that the defendant was violating the
Wagering
Tax Act.

THE COURT:
The what?

MR.
ASINOF: The Wagering
Tax Act. Since then, of course, this Court has held that the provisions
of that
law are constitutionally impermissible.

THE COURT:
Excuse me. What
I am trying to get to is did the officers use the projector to see the
films?

MR.
ASINOF: Yes, sir.

THE COURT:
Then and there?

MR.
ASINOF: Yes, sir. Then
and there. They went in, armed with the search warrant issued by the
United
States Commissioner, which did not call for the seizure of any obscene
films
but called for the seizure of gambling paraphernalia. No gambling
paraphernalia
was seized, except some negligible things which I think the State
conceded were
not sufficient, but during their search they searched through this
drawer and
found three cans of film-eight millimeter film-which they testified
they could
not discern or know, from their own knowledge, that it was or, what it
was. So
they found in the closet a projector and they found a screen and they
showed
these films, and looked at them. And after-

THE COURT:
Then they set up
the screen?

MR.
ASINOF: Then they set
up the screen, and they showed them.

THE COURT:
Is there any
conceivable circumstance in which, if you saw the film that-could it
possibly
be connected with the gambling paraphernalia?

MR.
ASINOF: I would think
no. I would think not. I wouldn't know that there was any connection
between
them.

But what
happened after
they showed these films-not having a warrant to seize the films-the
evidence
shows, in the case and in the record, that the officer-the State
officer-called
the Solicitor General, who is the prosecuting officer for that Circuit,
and
told him they didn't find gambling paraphernalia, but that they did
find some
films. And it is in the record that the Solicitor General then stated
to him,
"After you view the films, if in your opinion they are obscene, seize
the
films and book the case, and I'll set a bond."

THE COURT:
Well, tell me.
Suppose instead of these films, they had found counterfeit bills?
Couldn't this
fellow have been prosecuted for possession of counterfeit bills?

MR.
ASINOF: I think so.

THE COURT:
How do you
distinguish that?

MR.
ASINOF: I distinguish
that, and I concede that where evidence is seized, or where contraband
is
seized, where it's not such as would be subject to a claim of the First
Amendment freedom of the press or freedom of speech, that the states do
have
the right to prohibit the possession.

THE COURT:
I take it that
Harrison would require that, if it were counterfeit money?

MR.
ASINOF: Yes, sir. I
think that any case-and we concede that in our brief, and make that
distinction-that in this particular case these were films alleged to be
obscene, from the very start. They weren't seized as gambling
paraphernalia,
but they were seized under a warrant issued by the United States
Commissioner,
under the Wagering Tax Act, under a contention that the defendant had
not
registered as a gambler.

THE COURT:
Was this man a
merchant, or a distributor of any kind?

MR.
ASINOF: No, sir. There
was no claim of any distributorship. He was an individual, in his own
home. The
State, of course, alleged and contended that he had a record for
gambling, in
the past, and that Federal agents and State agents were going in for
that
purpose-that they had' 'probable cause," one of the contentions in the
affidavit being that he had not registered as a gambler and paid his
tax, which
of course since then-

THE COURT:
Well, in the
prosecution and the actual trial for the possession of these films, was
there
any effort to at least prove that the possession of the films was for
the
purpose of sale?

MR.
ASINOF: No, sir.

THE COURT:
It was just
naked "possession of the films"?

MR.
ASINOF: This is not a-

THE COURT:
There was one
other point. There were biscuits in the kitchen.

MR.
ASINOF: This was
brought up in the brief to this Court that there were biscuits being
ready to
be put in the stove; that there were well-dressed people who came to
the house;
that this man was a bachelor and his girlfriend had come there, and
that the officers
had turned them away. They say that the table was set for eight people,
looked
like they were fixing to have supper-getting ready to have supper-and
for this
reason, they said that apparently he was going to have a party. This
was the
contention. This was the contention raised by the State, but I want to
call the
Court's attention to this-

THE COURT:
Where was this?

MR.
ASINOF: Sir?

THE COURT:
Where was this?
In Georgia?

MR.
ASINOF: In Atlanta.

THE COURT:
Was there any
claim that this party was going to include the showing of these films?

MR.
ASINOF: That's what
they claim. They claim, circumstantially there's no evidence of that at
all.
The defendant denied knowing anything about-

THE COURT:
Well, as I
understood you to say, neither screen nor projector was set up?

MR.
ASINOF: That's right.

THE COURT:
And the films
were in cans in the desk drawer?

MR.
ASINOF: Upstairs in the
bedroom of the defendant, in a desk drawer.

THE COURT:
But you say the
claim-was there any effort at the trial to show that he was going to
have a
party, including showing these films?

MR.
ASINOF: No, sir, none
whatsoever. No testimony of that, at all.

THE COURT:
Well what do you
do with films, normally?

MR.
ASINOF: Well, I would
imagine that you would show them.

THE COURT:
Do you keep them
as a souvenir, or show them?

MR.
ASINOF: Well, I think
that an individual could do as he pleases with them; but the point is
that in
this case-and this is the paramount thing in here that the State did
not
contend by its indictment that he had any intent to show them. And this
was one
of our grounds of demurrer in the trial court, in the State Court.

THE COURT:
You mean showing
them to somebody else?

MR.
ASINOF: Whether there
was any intent to do anything with them.

THE COURT:
Or even to show
them to himself? There was nothing, as I understand you-there is
nothing to
indicate, except that he had them in the drawer, and in the closet he
had a
projector and a screen?

MR.
ASINOF: That's right.
He could have shown them for his own use.

THE COURT:
Or maybe he
wasn't going to show them at all.

MR.
ASINOF: Maybe he wasn't
going to show them at all. He contended by his-

THE COURT:
He was going to
keep them as a keepsake?

MR.
ASINOF: Well, he could.
In his statement he said that: "I have never seen these films
before," that "a man brought them to my house on Labor Day,"
which was about four or five days before this. But the point was that
the State
at no time in its indictment charged this. We demurred on the grounds
of
vagueness of the Georgia statute. The Georgia statute did not
specifically make
the mere possession an offense and we asked for interpretation by the
Supreme
Court, and got it. The Supreme Court construed the language to be
sufficient to
make the mere possession an offense. And that's why we are in this
Court,
because of the fact that we are reinforced by the State Court decision
holding
that the mere possession is an offense; and we say that gives it an
unconstitutional interpretation.

THE COURT:
The nub of this
case appears on page 69 of the appendix, doesn't it-right at the top of
the
page, that one sentence?

MR.
ASINOF: I believe so,
Your Honor.

THE COURT:
"It is not
essential to an indictment charging one with possession of obscene
matter, that
it be alleged that such possession was with intent to sell, expose, or
circulate the same."

MR.
ASINOF: That's correct.

THE COURT:
And that's a
clear holding by the highest court of your State, that mere
possession-or, as
my Brother Brennan says, "naked possession" -is sufficient to
constitute a criminal offense?

MR.
ASINOF: That's correct.
That is the holding of the Supreme Court. So the question is squarely
before
this Court, as to whether or not under that interpretation given to it
by the
supreme court of Georgia, whether or not that can be squared with the
First
Amendment; whether mere possession of material alleged to be obscene
pictures
or writings-can be constitutionally made a criminal offense.

THE COURT:
To get it down a
little closer, it is that naked possession-pictures of naked persons
cannot be
kept in a person's house, without his committing a crime?

MR.
ASINOF: Under Georgia
law, under the interpretation given by the supreme court of Georgia
that is
correct.

THE COURT:
What did this
fellow get, a year?

MR.
ASINOF: Yes, sir. He
received a year's punishment in prison. That was fixed by the jury, and
it was
under the charge of the court. Of course under Georgia law, peculiarly,
the
jury fixes the punishment; and under the charge of the court, the court
charged
the mere possession as being-that that's all they had to consider-
together
with either that he had knowledge that they were obscene, or that he
should
reasonably have known of its obscene nature. Now this gets to the
scienter
question of whether or not a state can withdraw the element of scienter
by
permitting a conviction to rest upon less evidence than actual
knowledge that
it is obscene.

THE COURT:
Has your client
been out on bail?

MR.
ASINOF: Yes, sir, he's
been out on bail.

And the
second question
involved in this case, as I've stated, is that this Court has held in
Grosso
and Marchetti since this case was tried, that the Wagering Tax Act is
constitutionally unenforceable. Now this holding by the Court renders,
we say,
the search warrant that was issued in this case invalid. We filed a
motion to
suppress in the trial court. In our motion to suppress-

THE COURT:
When was the
search warrant issued?

MR.
ASINOF: The search
warrant was issued before the Grosso and Marchetti decisions. It was
issued in
1967, but it was about-it was some months before Grosso and Marchetti.
But we
filed a motion to suppress evidence, and in our motion the allegation
was made
that the films were seized without a valid search warrant, particularly
describing the articles to be seized. That language, we say, is
sufficient to
now reach back as of that time and say that that was a sufficient
attack upon
the warrant itself.

THE COURT:
Do you argue at
all that even if the warrant was valid, and even if Marchetti and
Grosso
weren't retroactive, that nevertheless the search was invalid because
the
warrant described gambling paraphernalia, and they nevertheless seized
a film
which-it isn't like just running across contraband that is lying out in
plain
sight, you have to actually look into the film to see what's in it?

MR.
ASINOF: Not only look
into the film-

THE COURT:
Do you make that
argument?

MR.
ASINOF: Yes, sir. Not
only look at the film, but there had been no-this requires, on the
question of
obscenity, it would require at least the finding of a magistrate to
determine
that these films were obscene. In this particular case, the evidence is
clear
that this officer called the Solicitor General and asked the Solicitor
General
what to do, and he told him, "if in your opinion they're obscene, seize
the films and make a case and I'll set the bond."

Now we say
that this would
require, before a film or a picture or a photograph or anything else
can be
considered to be obscene, there must be some judicial finding, some
notice,
some knowledge, that these films have been declared to be obscene-at
least that
much. And we say, for that reason, that even though officers would be
authorized to seize contraband not named in the article, that they
would not be
authorized to seize films alleged to be obscene; that the Solicitor
General
himself had no judicial powers under the law of Georgia, had no right
himself
to have seized the films; but that in this case he delegated some sort
of
judicial power to the officer making the finding and told him, "if in
your
opinion they're obscene"

THE COURT:
I take it you're
relying on Marcus, aren't you? You're relying on Marcus?

MR.
ASINOF: Yes, sir, the
Marcus case.

THE COURT:
Marcus involves,
as I recall it-didn't it? -A warehouse full of books, of which there
were six
or seven that the police had purchased? And there, on the basis of
police
examination of the books, they issued a warrant?

MR.
ASINOF: That was under the
Missouri statutes.

THE COURT:
And we said that
they had to have a determination in advance; but isn't this a little
different?
Here you have just a single item. Just how would you get the film to
have a
determination of obscenity, before a search warrant issued? How would
you get
it?

MR.
ASINOF: Well, if the
Solicitor General had instructed the officer to "submit your facts to a
magistrate, and if he"-

THE COURT:
What facts? He
would have to take the films, wouldn't he?

MR.
ASINOF: No. He could,
by affidavit, submit to a magistrate who was authorized to issue a
warrant-he
could submit what these films revealed to him.

THE COURT:
According to
another argument, he wasn't even entitled to look at them.

MR.
ASINOF: That's right.
He was not even entitled to look at them-which of course is, again, the
question-but we say that under either one of these theories, the
seizure of the
films was illegal.

THE COURT:
Well, it
wouldn't be obscene unless it lacked some socially redeeming value, as
I
understand it, and you couldn't tell that unless you saw it.

MR.
ASINOF: Of course, Your
Honor, that's true; but I think that's something that has been the
subject of
discussion for many, many years, as to whether or not an item does have
redeeming social value, or whether or not it could be classified as
obscene.

THE COURT:
Were these
movies shown at the trial?

MR.
ASINOF: Yes, sir, the
movies were shown at the trial.

THE COURT:
It was a jury
trial?

MR.
ASINOF: Yes, sir.

THE COURT:
Are they here?

MR.
ASINOF: Yes, sir, I
think this Court has them. And I would say this, that of course I
think-and I
would concede to this Court-that the pictures-the films, insofar as
films are
concerned-I think they are disgusting. But I don't know that
"disgusting"
makes them obscene. I don't know that they would appeal-they wouldn't
appeal to
my prurient interests. I don't know whose prurient interests they would
appeal
to because I think that they're sickening, but I don't think that
they're any
more sickening than it would be to show a man being tortured to death,
and
having his guts torn out of him; but that wouldn't be obscene. It's
really hard
to say what obscenity is, but getting right to the point in this case,
we say
that if they are the vilest, the filthiest pictures that could ever be
seen,
that a person has the right to possess them, as long as he has not-and
this is
what this Court held last year in Redrup, and the other cases along
with
Redrup-that as long as there is no pandering, as long as there is no
exhibition
to minors, and as long as there is no intrusion upon the privacy of
other
persons who are unwilling to see them, then of course we have nothing.
And this
is all we have in this case, unless we want to accept the State's
theory that
because there were some biscuits being prepared to be put in the stove
and
because of the fact that the table was set for eight, where they were
going to
have dinner-and against the statement of the defendant in the trial on
the case
with nothing to refute that, that a man had brought these films to him
several
days before and told him, said "I have some films that I'd like you to
see."

Now we say
this, if the
Court please, that wherever we find that a question of obscenity is
concerned,
or whether or not we know that something is obscene, if A tells B, "I
have
some pictures I want to give you, and these pictures are obscene," does
that say that B cannot determine or ascertain for himself whether they
are
obscene to him? Or does that mean that he would have the right,
himself, to
inspect those films and say, "I have a right, under the First
Amendment,
to determine whether"-

THE COURT:
Well, you don't
have that case here. Why argue that case?

MR.
ASINOF: Well that is
what it would actually-

THE COURT:
All you have
here, as I understand it, assuming any obscenity in these films, is a
question
of whether the possession and nothing more-not for sale or
otherwise-but just
the possession, of itself, constitutionally can be made a crime under
the First
Amendment. Isn't that what it is?

MR.
ASINOF: That's right.
And that's why I say, if Your Honor please, that because of that a man
has the
right to determine for himself if it offends him-if, to him, it's
obscene-because it would violate the First Amendment to say that if a
man handed
me some film-

THE COURT:
Incidentally, is
there anything in this record to show that he had any knowledge as to
what
these films were?

MR.
ASINOF: None,
whatsoever, except the fact that they said-an expert testified that the
films
had been scratched; one of them was wound backwards, to show that
someone had
seen them at some time in the past; but nothing to show that he had
seen them,
or he had ever viewed them, and there's nothing to refute or rebut his
statement that he had never seen them before.

THE COURT:
Were they in his
trunk upstairs, or bureau drawer?

MR.
ASINOF: In the desk
drawer of his bedroom upstairs-and there was no setup, nothing set up,
no
screen set up to show these, or view these films.

THE COURT:
The difference
between this and the Wilkes case which was tried a long time ago is
that there
they found the paper at the bottom of his trunk, and here they found it
in the
desk drawer, and they turned him loose.

MR.
ASINOF: I think that
that would be analogous. So I would like to reserve what time I have
left. I
know the white light hasn't come on, but I would like to reserve, if I
may, the
time for rebuttal.

MR. CHIEF
JUSTICE WARREN:
You may. Mr. Sparks?

ORAL
ARGUMENT OF J. ROBERT SPARKS, ESQ.,ON BEHALF OF APPELLEE

MR.
SPARKS: May it please
the Court: I am the trial counsel who prosecuted this case in the court
below-the Superior Court of Fulton County-so the Court has the original
trial
counsel. Mr. Asinof was the defense counsel. Now, I want to point out
several things
to the Court which I think Mr. Asinof neglected to point out, because
he was so
wrapped up in his own argument-one is this. On the question of whether
or not
this Georgia statute contains the element of scienter, I want to point
out to
the Court that the supreme court of Georgia ruled on that, in this very
case.
The court said-and I'm just reading in part, just a line-"It is
contended
that the requirement of reasonable knowledge would withdraw the element
of
scienter from the definition of the offense and would render a person
guilty,
without actual knowledge of the obscene nature of the matter. This
contention
is without merit."

Now, Your
Honors, as we
have pointed out in our brief, this Court has consistently held that
where a
State statute is interpreted by the highest court of its State, that
this Court
is bound by the construction placed on it by that court. That happened
in the
Mishkin case-another obscenity case with which the Court, of course, is
familiar-and also in the last Ginsberg case. Now in the last Ginsberg
case, the
New York statute which defined knowledge as this, "knowingly possess
obscene matter," the New York statute defined "knowingly" as
"having general knowledge of, or reason to know"-the exact same words
that are in the Georgia statute-"or reasonably should know, or a belief
or
ground for belief which warrants further inspection or inquiry."

In other
words, in the
Ginsberg case-and that's the G-i-n-s- b-e-r-g case, there being two
Ginsberg
cases in the obscenity field-this Court accepted the construction
placed on the
scienter feature of the New York Statute, and said: "as we are bound to
do."

Now the
Georgia supreme
court said in response to Mr. Asinof's contention about that language
of the
Georgia statute, "If such person has knowledge, or reasonably should
know
of the obscene nature of the matter" -does not remove scienter from the
offense, but is merely a statutory expression of the rule of evidence
which has
been extant in Georgia courts for many years. That is, the only way you
can
prove intent or knowledge of a person, as to anything-as to whether
goods are
stolen, or of any element involving intent or knowledge unless he
confesses-is
by the circumstances: "as to whether a reasonable man, in the same
position, would know or would have knowledge of the obscene nature."

So we
submit-I submit, very
respectfully, that by a long series of this Court's own decisions, that
you
cannot go beyond, or reverse, the judgment of the Georgia supreme court
on this
question of scienter, because that is a State court interpreting its
own
statute. And I have cited a number of cases where this Court has said
that
"we are bound by such expression." This Court also said it in the
Mishkin case. It said it in the Kingsley International Picture
Corporation
case-in about eight cases, Aero Transit, all of which are listed in our
brief.

So, that
moves us on to the
second facet of the attack on the constitutionality of the statute. I
submit
most earnestly to the Court that scienter is an element of this offense
as
interpreted by the Georgia court-by the Georgia supreme court-and that
this
Court cannot, unless you reverse your prior rulings which are set out
in our
brief and which I've cited to you-unless you reverse that long line of
cases, I
don't believe the Court, in keeping with its precedents, could just say
"We think the Georgia court was wrong when they said that this statute
does not contain the element of scienter."

THE COURT:
What was the
State's evidence on scienter-to prove scienter?

MR.
SPARKS: It was
circumstantial, Your Honor, but we think it was sufficient. These
officers went
in with a Federal search warrant to seize wagering paraphernalia. This
man was
alleged to have been a notorious bookmaker with a prior record of
arrests and a
conviction.

THE COURT:
I suppose that
wouldn't have any connection?

MR.
SPARKS: That wouldn't
have any connection with this case, but I was pointing out the
"probable
cause" we had.

THE COURT:
No. I am
interested in how you brought evidence, and what evidence there was,
upon which
the jury could find that he "knew" the contents of these motion
pictures.

MR.
SPARKS: One of the cans
bears the label "Young Blood" on it, which is certainly a suggestive
title. It's a homemade label. I gather from what the Court has said
that the
Court hasn't viewed these films. They are here and I have asked the
Court-

THE COURT:
I would still
like to know, if you don't mind, what the evidence was that brought
home to him
"knowledge" of the contents of those movies?

MR.
SPARKS: Well the
evidence showed, Your Honor, that in the upstairs living room there was
a
projector set up, and a bunch of innocuous films, slides, travelogues,
things
like that-these films were not found with the other films, the
innocuous or
innocent-type films, but they were found in a desk drawer underneath
some
papers, in his private bedroom. The officers ran them, threw them
against the
wall, and then went downstairs and told him, "We are arresting you for
the
obscene films that were found upstairs. "

THE COURT:
Well why did
they show the films? They were looking for what-the search warrant was
limited
to what? And with that, why did they want to look at a film?

MR.
SPARKS: Your Honor, Mr.
Justice Marshall, I think that they wanted to look at the films for the
reason
that the films might have been a record. They were authorized to look
for
bookmaking records, and it's not inconceivable that-

THE COURT:
Would he have
them in a tin can marked "Young Blood"?

MR.
SPARKS: He could.
That's just like the old "Purloined Letter" scheme-Edgar Allen Poe,
the story about putting something in the most conspicuous place.

THE COURT:
I assume the
policemen read Edgar Allen Poe?

THE COURT:
And as soon as
they saw the first film-the first frame-you thought you were still
looking for
records?

MR.
SPARKS: No, sir, but
there were three cans.

THE COURT:
They ran through
all three, I take it?

MR.
SPARKS: They didn't
show all three of them, Your Honor. The record shows that they only
showed a
few feet of the second and third one. In fact, one of the films had
been
rewound backwards-which shows recent viewing-and the pictures were
shown upside
down.

THE COURT:
Now you were
going to tell us that he went downstairs, and I gather you were going
to tell
us that he met the defendant-the officer did?

MR.
SPARKS: He went
downstairs and met the defendant, and told the defendant that "I'm
arresting you for those obscene films upstairs." The defendant said
nothing-of course I don't claim that-you can't use his right to remain
silent
against him; that's a constitutional right. But it would still seem
more
logical to say, "What films?" if he didn't know that he had any
obscene films; but of course-

THE COURT:
All right. But
so far all you've got is that he said nothing?

MR.
SPARKS: Yes, sir.

THE COURT:
Now what else
have you got? The officer said to him, "I'm going to arrest you for
those
obscene films." The defendant said nothing.

THE COURT:
Now does the
fact that he called his lawyer indicate that he knew what those films
were?

MR.
SPARKS: No, sir, but
there is his own statement. He made a statement on the trial. Georgia
has the
unsworn statement law where defendants can either be sworn or make an
unsworn
statement. This is what he said-and while it is not an admission, it
still is
significant, I think; it's very brief. He said: "I'm a bachelor, and I
live by myself, and I have a girlfriend. We planned a party for Labor
Day. I
invited several couples out. Later on in the evening a friend of mine
came by
and said, 'I brought you something I want you to see.' He handed it to
me. It
was three rolls of film. I took the film upstairs and put it in the
desk
drawer, closed the desk drawer, and came back downstairs." Then he goes
on
to say he never looked at it.

However,
there were-two
people were in the backyard when the officers made the execution of the
search
warrant-two men. Three women came over later that evening-well-dressed
women. There
was Justice Marshall's three dozen biscuits sitting on the stove. All
the
indications were that there was going to be a party, and in fact he
told the
jury that he was going to have a party. And in that connection, in the
context
of his statement telling about the party first, and a friend bringing
the films
by, and saying "I want you to see them," I think it's a reasonable
deduction that the jury could have drawn, that the films were to be
shown at
the party.

THE COURT:
Well is there
anything in what you've told us that would support an inference that he
had
looked at the films and knew what they were?

MR.
SPARKS: Only-one of the
Federal agents was a former professional photographer, Your Honor, and
he
testified that the films were badly scratched; that they were dirty;
that one
of the films had been wound backwards which caused the figures to
project
upside down on the wall when they showed it; and he said that they had
obviously been used before-been shown before, many times.

THE COURT:
Many times, did
you say?

MR.
SPARKS: I am not
certain whether he used the word "many," or not. I know that he said
that they had obviously been shown before; that they had seen-I believe
he said
that they had seen "extensive use." I could find that for you.

MR. CHIEF
JUSTICE WARREN:
We'll adjourn now.

[Whereupon,
at 2:30 o'clock
p.m., the hearing in the above entitled matter was recessed, to
reconvene on
Wednesday, January 15, 1969, at 10:00 o'clock a.m.]

Washington, D.C.Wednesday,
January 15, 1969

The
above-entitled matter
came on for further oral argument at 10:10 o'clock a.m.

MR. SPARKS: Mr. Chief Justice, and
Honorable
Justices: At
the recess yesterday afternoon I was just completing my response to
questions
by Justice Douglas-excuse me, not Douglas, Brennan-as to the evidence
of
scienter. And I had practically completed a summary of the
circumstances, which
we feel justified the jury to find that this defendant knew all of the
obscene
nature of the matter. I just want to elaborate in one respect.

THE COURT:
You aren't
arguing that, are you? That he knew it was obscene? You're just arguing
that he
knew the contents of the films?

MR.
SPARKS: That's right,
the "contents" of the film-that he knew the contents of the film-or
of the obscene nature of the film. That is the way the Georgia statute
reads, I
believe.

I just
want to point out
two things in relation to his statement and then I will move on to
something
else. In his unsworn statement, when he attempted to explain his
possession of
the films in a manner consistent with lack of knowledge of the
contents-and I
submit that it was an unreasonable explanation-it was somewhat
unreasonable, in
two respects.

First, he
said that a
friend brought the films by and left them with him, saying that he
wanted the
appellant to view the films. I submit that it's somewhat unreasonable
that films
would have exchanged hands, without some explanation on the part of the
unknown
friend, or some query on the part of the appellant as to what kind of
films are
they-particularly the small, eight millimeter films in the can with the
home-made label. I feel quite sure that if anyone came to me and said
"I've got some films I want you to see" I'd say, "Well, what are
they? Films of your fishing trip, or your family, or-"

THE COURT:
Well what if you
asked him, and he said, "They are films about girls."?

MR.
SPARKS: Then I think-

THE COURT:
Would you know,
or would you have any real clue, that they were "obscene" films?

MR.
SPARKS: I think that
would warrant further inquiry, Justice White.

THE COURT:
That may be, but
what evidence is there that there was ever any "further inquiry," or
any further investigation as to what the films were about?

MR.
SPARKS: There is no
evidence because, of course, this was an unsworn statement and the
State was
not allowed to cross-examine him or go into it without his consent,
unless he
voluntarily submitted himself to cross-examination.

THE COURT:
The State has
the burden of proof, doesn't it?

MR.
SPARKS: Yes, sir. The
State had the burden of proof, Your Honor. But I think this is both
Federal and
State law, as I recall from my days as an Assistant U.S. Attorney, that
where
the defendant goes ahead with an affirmative defense, then not the
burden of
"proof," but the burden of making a "reasonable
explanation," shifts to the defendant.

And that
leads me to my
next point. And that is, that he did not identify his friend. He
neither
produced him, nor identified him by name.

THE COURT:
In that
statement he also said "I never saw the films before today, and never
had
shown them to anyone, so help me."

MR.
SPARKS: Yes, sir, that
is true. And I want to point out, in that connection, before I pass
from this
subject, the case of Smith v. California, which this Court decided, in
which
the defendant was convicted for the offense of bare possession of
obscene
matters, under California ordinance, which had no element of scienter
in it as
interpreted by the California Supreme Court. And the Court said, in an
opinion
by Mr. Justice Brennan: "We might observe that it has been some time
since
the law viewed itself as impotent to explore the actual state of a
man's mind.
Eyewitness testimony of a bookseller's perusal of a book hardly need be
a
necessary element in proving his awareness of its contents. The
circumstances
may warrant the inference that he was aware of what a book contained,
despite
his denial."

And I
submit that those
quoted words are pretty analogous to the facts in this case. We are
relying on
the circumstances. We have no direct evidence that he saw-that he even
knew
what the films were. But we submit that all of the circumstances: the
impending
party, the films concealed, the title "Young Blood," is rather
inadequate explanation-

THE COURT:
I'm really
interested. How does that title suggest anything? I don't get this
"Young
Blood." What's that suggest? Or is it my age? I don't know.

MR.
SPARKS: Well, I think
it suggests sex, Your Honor. We normally associate sex with young
blood-with
young people.

THE COURT:
I guess it is my
age.

[Laughter.]

MR.
SPARKS: I want to pass
on to another point. I gathered yesterday from the questions asked my
worthy
adversary, Mr. Asinof, that this Court has not yet viewed the contents
of the
films, which were transmitted to the Court, by the direction of the
Georgia
Supreme Court. I wish to most respectfully and humbly urge this Court
to view
the films before ruling on the case.

THE COURT:
Do you think we
have to view the film, if there are-do you think we have to view the
film, if
there are constitutional bases that don't relate to the subject matter
of the
films, for disposing of this case-such as the question of mere
possession, or
the search and seizure question? Why would you want us to view the
films?

MR.
SPARKS: I was fixing
to-that was going to be my very next statement, as to the legal reasons
why I
feel that the films should be viewed.

THE COURT:
Even if we think
that you can dispose of this case-must dispose of the case-on the
possession
ground, or the search and seizure Fourth Amendment grounds?

MR.
SPARKS: Yes, sir, I do
for this reason-

THE COURT:
All right. Tell
me why.

MR.
SPARKS: This Court, or
the majority of this Court, has consistently held in obscenity cases
from Roth
on through Jacobellis, Mishkin, Ginsberg, even Redrup I believe, and
the last
Ginsberg case in 1968, that obscenity is not protected by the First
Amendment
to the Constitution. And if the Court views these films and finds that
they are
not only-that they are not borderline obscenity, but hard-core
pornography-

THE COURT:
You mean, if
this is obscene we should not reach the Fourth Amendment question?

MR.
SPARKS: Should not
reach the First Amendment question.

THE COURT:
The Fourth
Amendment question of search and seizure?

MR.
SPARKS: Oh, no, sir.
I'm not saying that. I think-as a matter of fact, I am not absolutely
certain,
Justice Stewart, that the search and seizure question is actually
before this
Court.

THE COURT:
I'm Fortas. This
is Stewart (Indicating).

MR.
SPARKS: Excuse me. I'm
sorry. Search and seizure is not an appeal able question. The Court
noted
probable jurisdiction without restricting the question to the only
appeal able
question, which is the constitutionality of the Georgia search and
seizure-I
mean, the constitutionality of the Georgia Obscenity Act. And the same
thing
happened in the Mishkin case, and the Court dismissed. They said that
the
search and seizure question was properly briefed by both parties, and
then
declined to pass on it, and said that probable jurisdiction had been
erroneously noted, as far as that's concerned. However, I do feel that
the
Court would have to pass on the search and seizure question, but right
now I'm
addressing myself to the constitutionality of the Georgia statute.

THE COURT:
Well, I
understand that, but I want to be clear on one matter with respect to
your
position.

MR.
SPARKS: Yes, sir.

THE COURT:
Now here are
some allegedly obscene films. I haven't seen them, but if I should
decide that
this case must be reversed on the possession point, or on the search
and
seizure point-Fourth Amendment point-I would not consider it, as
presently
advised, I would not consider it necessary to endure a sight of motion
picture
films whatever their content may be. Do you consider that you disagree
with
that present thought of mine?

MR.
SPARKS: I disagree with
it, Your Honor, as far as the First Amendment ground is concerned.

THE COURT:
I'm not talking
about the First Amendment. I'm talking about the two points that I'm
talking about,
namely the possession and the manner of seizure, which are Fourth
Amendment
points.

MR.
SPARKS: Your Honor, I
feel that the-

THE COURT:
And maybe the
possession is a First Amendment point, in a sense, but not in the sense
that
you're talking about. I take it you're talking about-

THE COURT:
But if we should
conclude that a statute making mere possession a criminal offense is
unconstitutional under the First Amendment, regardless of the nature of
the
films, then it obviously wouldn't be necessary for us to see the films,
would
it?

MR.
SPARKS: Your Honor, I
take the reverse position. I say that you should see the films, and if
they are
hard-core pornography and outside the protection of the First Amendment
as this
Court has held in Roth and a whole series of cases, then it would not
be
necessary-

THE COURT:
No. But I say,
assuming that we felt-assuming that I should conclude, that insofar as
I'm
concerned, mere possession cannot be punished as a crime regardless of
how
obscene the film might be, then it would follow that there'd be no
point in my
seeing the film. Isn't that right? I mean that seems to me to follow as
a
matter of course.

Now I know
your position is
that if the film is obscene, mere possession can be punished. But I say
that if
I disagreed with that, then obviously it would not be necessary for me
to
endure a sight of this film-I'm not characterizing it as obscene. I
don't know
whether it is or not, but it probably is not one of the greatest works
of art
that's ever been struck by the hand of man.

MR.
SPARKS: That's an understatement,
Your Honor.

THE COURT:
Your real point
is, isn't it, that appropriately some of these questions might be
judicially
resolved?

MR.
SPARKS: Yes, sir,
that's correct. That's what I mean.

THE COURT:
I hope you're
going to address yourself to the constitutionality of this statute:
mere
possessions, without any purpose to exhibit, sell, or display?

MR.
SPARKS: Yes, sir, that
was going to be my next point. To the best of my knowledge and
research, and I
believe-

THE COURT:
Let me ask you,
before you do that, as I read the record it seems to me that the only
time it's
established in the evidence that the picture has been displayed in
Atlanta was
when it was displayed in the prosecuting attorney's office to a group
of
people. Is that right?

MR.
SPARKS: That is the
only evidence that it has been displayed in Atlanta. I recall that Your
Honor
asked me-

And
yesterday, Justice
Black, you asked me about what the expert photographer said. He said
that the
films are badly scratched and dirty. They are not in new condition at
all.
That's where I mistakenly said that they had seen "extensive use."
"They
are not in new condition at all. One reel was rolled backward and never
rewound
after a showing of the film." And he says, "Yes, sir, they obviously
had been shown before."

THE COURT:
But where in the
record does it say they were shown in Georgia before? It doesn't say it
at all.
It says they were shown "some place" before.

MR.
SPARKS: That's true,
sir, Your Honor. We didn't have any eyewitness who watched this
appellant show
the films.

THE COURT:
And the
undisputed evidence was that the appellant had barely come into
possession of
these films that very day.

MR.
SPARKS: That was not
evidence, Your Honor. That was in the form of an unsworn statement.

THE COURT:
Well, you've
been talking about it, though, as the basis for much of your argument.

MR. SPARKS: Yes, sir. Under
Georgia law, the
jury can pay
what attention to it wants to. It can either disregard it, or-

THE COURT:
Well are you
suggesting that we should disregard that statement entirely?

MR.
SPARKS: I'm suggesting
that the Court should consider it, and consider its deficiencies.

THE COURT:
Well, if we do
then we know that he had "barely come into possession of the films."

MR.
SPARKS: Well I'm not
saying that the Court should believe it all, in its entirety, because
the
natural thing for him to have done was-if that's true-was to have
brought the
person into court, or at least named him, so that the prosecution could
have
brought him into court.

I have
only a couple of
minutes left, and I haven't addressed myself-

THE COURT:
Do you really
mean "bring him to court"? Well, you would have arrested him,
wouldn't you, because he would have admitted that he had possession of
these
films?

MR.
SPARKS: It's entirely
possible, unless he denied it. He might have said, "No, sir. I don't
even
know Bob Stanley; never saw him before, and certainly I didn't give him
any
films." Then we would have made a State's witness out of him and proven
that the defendant made a false statement in his unsworn statement.

On the
question which
Justice Harlan asked me to address myself to, on the constitutionality
of the
possession statute: I really see no reason why a possession statute
making
hard-core pornography obscene cannot be constitutionally enacted by a
state.
States have many possession statutes, and the Court knows them as well
as I
do-possession of stolen goods, possession of concealed weapons without
having
licenses for them, possession of narcotics, possession of dangerous
drugs,
possession of burglary tools. The Federal Government has many
possession
statutes: possession of a car-stolen car, transported in interstate
commerce,
possession of money taken in an FDIC bank robbery, many possession
statutes.
And even during Prohibition days, bare possession of intoxicating
liquors of
any type was an offense. And I see no reason why the possession of
hard-core
pornography should not be made an offense. And I know of no case in
which-I
think this is a case of first impression before this Court-I have not
been able
to find a case exactly in point. .

Now in the
Smith case,
which this Court admittedly reversed, but only because there was no
scienter,
it seems to me that the opinion which I've quoted from once before
indicates,
or implies, that had the California ordinance had the element of
scienter in
it, that it would have been constitutional because-Mr. Justice Brennan
said
this-"We need not, and most definitely do not, pass today on what sort
of
mental element is requisite to a constitutionally permissible
prosecution of a
bookseller for carrying an obscene book in stock."

THE COURT:
"For
sale."

MR.
SPARKS: That is the-

THE COURT:
"For
sale." What's bookseller mean?

MR.
SPARKS: Yes, sir. But,
Your Honor, the California ordinance did not have any element of
carrying it in
stock "for sale." It just said "possession." Absolute
liability-absolute criminal liability.

THE COURT:
But that case
did involve a bookseller.

MR.
SPARKS: It did involve
a bookseller, but-

THE COURT:
It involved a
prosecution, for having books for sale, didn't it?

MR.
SPARKS: I can't see,
honestly, where the First Amendment grounds hit this particular case.
This man
is not a bookseller. He was suspected of being a bookmaker, rather than
a
bookseller. Now he was not intending to sell these films, so far as the
available evidence indicates. The general public was not deprived of
the right
to look at the films.

Now the
Georgia Supreme
Court, in distinguishing this case from the Marcus case, said as much
in its
opinion. It said that the Marcus case, on the search warrant-it said
that that
case involves freedom of the press and freedom of speech. This case
does not.
And I don't think this case involves-under the facts of this case, this
is just
an individual. He is not being deprived of his rights- the public, I
should
say, is not being deprived of the right to view his films. I see I have
the red
light.

I might
just say this, if I
might be allowed one more sentence.

I feel
that a possession
statute is necessary for effective law enforcement from the very type
of
evidentiary problem which has been pointed out by questions from this
Court. If
you catch a man with the pornographic material, how are you going to
prove that
he has read it, or that he has looked at it, or that he intends to sell
it? You
can stop pornography at its source, and I earnestly submit that this is
the
hardest type of hard-core pornography that this Court has ever had
before it.

MR. CHIEF
JUSTICE WARREN:
Thank you very much. Mr. Asinof?

REBUTTAL
ORAL ARGUMENT OF

WESLEY
R. ASINOF, ESQ.,

ON
BEHALF OF THE APPELLANT

MR.
ASINOF: May it please the Court: With
respect to Smith
v. California, that prosecution involved a bookseller, under an
ordinance
providing or referring to booksellers; consequently, the "sale."
We're dealing with a person there who is in the business of "selling
books."

THE COURT:
Give me your
view of how you would argue the possession point, accepting the fact
that the
Court has said that obscenity is not protected by the First Amendment.

MR.
ASINOF: In the Roth
case where that principle was established, we find that the Roth case
was a
question of distribution.

In an
instance where an
individual who possesses something that we'll admittedly say is
pornographic,
the Constitution does not protect him from the distribution; and this
is
followed in the Redrup case.

THE COURT:
Yes, but the
case says the obscenity isn't within the First Amendment.

MR.
ASINOF: That's correct,
but the case was dealing with the question of the distribution.

THE COURT:
But you mean
that obscenity, in the course of distribution, is not protected? And
obscenity,
in possession, is protected?

MR.
ASINOF: That's correct.
The case did not hold that bare possession, or mere possession, was not
protected. The Court said in Roth that obscenity was not protected, but-

THE COURT:
The material
doesn't change any, so what is the critical fact? The material, whether
its
"distributed" or not, is the same. And it either is or isn't
protected by the First Amendment So what is different between
"possession" and "distribution"? What should you really
focus on?

MR.
ASINOF: Well, in the
distribution, you're dealing with the question of furnishing it to
others. And
the mere possession in the privacy of your own home where no one else
has seen
it, where there's no evidence that anyone else has-or no one else is
intended
to come into contact with it-I say that no case holds that it is not
protected-that an individual cannot take a picture of his own obscenity
and for
posterity, for himself, if he so chooses, because to do so-to prohibit
a person
from possessing it would in itself violate First Amendment rights.

THE COURT:
Well what do you
say to your adversary's argument that the State, constitutionally, can
say
"We'll nip this business in the bud," given hard-core pornography or
whatever you want to call it. What do you say about that?

MR.
ASINOF: That, in itself-that,
in itself, would be a violation of the First Amendment. To say that a
person
could not write what he wants in his own diary-let's say that he's
going to
keep for his own personal future in his own drawer, not to be shown to
any
other persons-we say that the First Amendment is an absolute amendment
that
gives a man the freedom of the press, and the freedom of the press
carries with
it the freedom of motion picture films.

THE COURT:
But the Court
has held-at least the majority has held-that it is not an absolute
right in the
obscenity field.

MR.
ASINOF: But that was
held in the Roth case, Your Honor, and the Roth case involved-

THE COURT:
But what your
adversary is saying is that the State can legitimately-again, on the
premise
that what's involved here meets the Roth test-

MR.
ASINOF: Then we come
into the Redrup case.

THE COURT:
-can nip it in
the bud.

MR.
ASINOF: Well then, we
come into the Redrup case, which was decided since Roth. And this Court
last
year in Redrup and the other cases that went with it, reversed on the
theory
and on the principle, that there had been-that this was not a case
involving one
of the three elements: either distribution to minors, distribution to
persons
who are unwilling to see it, or "pandering," as was held in Ginsberg.
Now if we accept Redrup as being the law, then of course we must take
Redrup
and Roth together, as they both hold and say that obscenity insofar as
its mere
possession and bare possession-and I use that expression- insofar as
the bare
possession is concerned, would be protected by the First Amendment
because
there you are not intruding upon the privacy or the rights of others to
be free
from this stuff.

Now in the
finding-one
thing I would like to answer my opponent with respect to, he says that
the
State Court found that the State statute did not remove the element of
scienter. Now the rule as I understand it is that this Court will
accept an
interpretation placed upon a State Court, as to a non-Federal ground;
but as to
a Federal constitutional ground, this Court is not precluded by virtue
of a
holding of a State Court on a constitutional issue from reversing that
State
Court, because this is the final arbiter- this Court is the one that
must
decide the Federal ground.

Now,
secondly, in the brief
of the appellee, on page 45, he cites the case of Rainwater v. Florida,
which
was decided by this Court during the last term. The Rainwater v.
Florida case
was one that originated in the State Court. There was a Federal search
warrant
issued under the Wagering Tax Act. They seized certain items from the
defendant's possession, and they prosecuted him in the State Courts.
This Court
remanded that under the theory of Grosso and Marchetti-remanded it back
to the
State Court for further proceedings, not inconsistent with Grosso and
Marchetti.

This is
identical to the
case we have here. The State says in its brief that they’re the
prosecution in
the State Court was the end result of the issuance of the Federal
search
warranted. That's what we have in this case. This prosecution for
obscenity was
the end result of the issuance of the Federal search warrant, which
actually, under
Rainwater v. Florida doctrine, was inadmissible as having been
unconstitutionally obtained.

THE COURT:
To get back to
this possession point, under the State law assuming that possession
were a
crime-mere possession was a crime, and not barred by the First
Amendment-could
the State get out a search warrant to search your own library, on the
basis of
an affidavit that would say that you have in the library a copy of
James
Joyce's Ulysses, a copy of this book and that book, and that there
was-and therefore,
they get out a search warrant to examine your entire library?

MR.
ASINOF: I would not
think so. I would not think-I think that the Constitution-the Fourth
Amendment-says that the warrant shall particularly describe the
articles to be
seized.

THE COURT:
In other words,
they'd have to name the specific book?

MR.
ASINOF: That is my view
of that Amendment.Now one point that
was raised by my adversary, he says that the evidence in the case
indicated
that one reel of film had been wound backwards, or was "scratched,"
and that that would indicate that someone had previously viewed that
film. But
it would not show, and we submit to this Court that that fact alone
could not,
and would not show that this defendant, or this appellant, had ever
viewed it.

Now in
conclusion, I would
like to state that since my opponent has-or my adversary-has suggested
to this
Court that this Court view the film, he has in effect stated that "How
does this Court know that they are obscene, without viewing it." Now,
that
is our very position in this case. We say that with respect to the
appellant,
the same position holds true. If he has never viewed the films, he
would not,
obviously, know that they are obscene because without viewing them you
cannot
learn of its obscenity. And that is the point that we have in this
case. We say
that since the evidence doesn't show that he ever viewed the films,
that
therefore there is no evidence that he knew, or could have known, that
they
were obscene.

Thank you.

[Whereupon,
at 10:40
o'clock a.m., the argument in the above-entitled matter was concluded.]